Koh argues that American law should reflect "transnational" legal values—and that in an interconnected world it inevitably does to some extent already. In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations. He has, for instance, pushed for a more expansive view of what constitutes "cruel and unusual punishment" under the Eighth Amendment. Koh's views are in tune with—if bolder than—those of a majority of the Supreme Court on some issues....

Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. He has campaigned to write into U.S. law the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," signed by President Carter in 1980 but never ratified by Congress. A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles"). In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as "preposterous" the notion that the treaty would "somehow require the United States to abolish Mother's Day." Still, the reports are very much part of the "transnational" legal process that Koh celebrates.

Well, Scalia has explained this much better than I ever could but I'll try anyway.

One problem with using foreign law is that there are an endless array of foreign legal precedents available to judges who want to reach a particular outcome. They could easily cherry-pick the precedents they like and ignore the rest, resulting in an arbitrary and capricious application of the law.

For example, we could just easily take our cue on "cruel and unusual punishment" from authoritarian Singapore as we could from a touchy-feely liberal jurisdiction like the UK or Canada. Application of the law would then depend strictly on the temperament and outlook of the judge. Not a good thing.

Well, Scalia has explained this much better than I ever could but I'll try anywayScalia gave a great metaphor of consulting foreign rulings by giving the example of someone attending a football game with 120,000 people in attendance.

So, as you look over this vast crowd you single out a friend here and an ally there and a smiling face over there.

Yeah, come on. BHO is out of the closet by now, isn't he? We kind of need to get past the idea that the President being socialist is shocking. McCain was much the same. W, too. And certainly Clinton. Possibly Bush I.

Thomas and Taylor could have stated that the charge from critics on the right is that Obama is weakening American sovereignty and allocating too much authority to non-US and non-accountable international entities.

Well, its rather stimulating to have the shoe on the other foot, even for a conservative.

Bush ran headlong into the issue of how much power was required to execute his vision of a war on terror. Most people agree that he went too far, even if he never really implemented the more onerous measures that his legal advisors said he was empowered to act on.

I don't think that Obama will the let that power fade - he sees his opportunity to remake the US. I don' think, however that he will go all the way there, just as Bush didnt.

This whole topic is just an extension of a fallacy: Larger groups of people are smarter than smaller groups of people, so they should be able to make the decisions for everyone. The statist fallacy is that government is smarter than the citizens, so it should be allowed to take more and more of their money to spend as it sees fit "for the common good" and to make more and more intrusive decisions about how the people should live their lives.

Similarly, those same statists think that 7 billion foreigners must be collectively wiser than 300 million Americans. Anyone looking at the number of illegal immigrants coming to this country might think that they should reconsider this fallacious idea. The foreigners are voting with their feet and coming here because our way of life, on the whole, is better.

As has been widely reported in the press today, EPA has concluded that carbon dioxide and five other greenhouse gases are a danger to public health and welfare.....A friend email me suggesting that maybe the Justice Dept should get a referral first.

Why must "International Law" as it's known be an advisement, augmented or even considered to American Law under the Constitution and any American Legal Framework? All Koh does is make the case that American Sovereignty is relative to basis of laws we use from elsewhere besides the United States. Seriously, what is going on here? Is this a totally overt attempt at eroding American legal standing and sovereignty? Is it a shot across the bow that the NWO is finally on it's way? What? This is insanity and I'm horrified to even be alive to watch it.

That said, if Obama is in a socialist closet, the closet must be invisible cause all I see is a big liberal president who views capitalsm and hard work as antithetical to his wealth re-distributing worldview.

The question of which legal precedent to follow is really The question of which authority governs our legal system's practices. To pretend that we don't have the intelligence or authority here in the USA after 800 years of English Common law and 225 years of American Jurisprudence, following our defeat of an invasion by Great Brittain's twice, is a carefully calculated slap in the face to every American citizen. No wonder Obama likes to see more of this treasonous idea, disguised under the pretense that we need it since American courts are ignorant or "out of step with superior European traditions". This stuff is an undeclared world war in disguise.Just like the "CO2 equals pollution" fantasy enacted this week, is really an undeclared world war in disguise. Until we speak up publicly, we are in surrender mode to conquest by a new World Administration.

In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations."

Comform our First Amendment to laws of other nations? Maybe Cuba, Nicaragua, Venezuela, Iran, North Korea, and other bastions of freedom.

While I'm pretty sure that BHO is a not-very-colseted socialist, that's another issue What Koh is is a Transnational Progressive ("Tranzi" for short), and I'm pretty sure Obama leans that way to.

Tom Kratman described the Tranzisa thus:

Tranzi” is short for “Transnational Progressive” or “Transnational Progressivism”. For a more complete account of their program, look up John O’Sullivan’s Gulliver’s Travails or some of what Stephen den Beste has written on the subject. You might, Dear Reader, also look at John Fonte’s The Ideological War within the West. Lastly, for purposes of this little essay, look up Lee Harris’ The Intellectual Origins of America Bashing. These should give you a good grounding in Tranzism: its motives, goals and operating techniques. All can be found on line.

For now, suffice to say that Tranzism is the successor ideology to failed and discredited Marxist-Leninism. Many of the most prominent Tranzis are, in fact, “former” members of various communist parties, especially European communist parties. These have taken the failure of the Soviet Union personally and hard, and, brother, are they bitter about it.

One of the difficult things about analyzing Tranzis and their works is that they are not a conspiracy. What they are is a consensus. Don’t be contemptuous; civilization is nothing more than a consensus. So is barbarism. Moreover, the Tranzis are a fairly cohesive consensus, especially on certain ultimate core issues. Nonetheless, if you are looking for absolute logical consistency on the part of Tranzis you will search in vain.

Taylor as a member of the MSM is once again presuming to tell us to read ANOTHER Rev Wrights Sermon and conclude that the sermons were the ramblings of a poetic, effervescent preacher, that we shouldn't exaggerate it's meaning.

That said, if Obama is in a socialist closet, the closet must be invisible cause all I see is a big liberal president who views capitalsm and hard work as antithetical to his wealth re-distributing worldview.

Have to agree. Obama is in a socialist closet about as much as Sir Elton John is in a closet of another kind.

I have a theory that international law should not be used, and I write closely reasoned computer programs.There you are.. If it had been up to international law the Internet would most likely not exist as we know it.

Bart DePalma - In contrast, Obama's nomination of Koh suggests that he also has no respect for the rule of law.Of course they do. Rule of Law is just shorthand for Rule of Law(yers). As long as lawyers like Obama and Koh can bypass democracy and the People's Will they will be happy. It doesn't matter if their club over the people is a book of domestic law they alone create, or a domestic-foreign hybrid. Who has the power is all that matters, and it is for the People's own good that we are subject to One World, One Government, one List of Laws that control us and make us obey.

****************Michael61 said... With the America constitution there is a mechanism for amending it when the fundamental law of the land needs to be changed.

How are we suppose to "amend" international law?.You presume the Constitution is Amendable. It no longer really is unless you have no organized opposition. Special interest groups and lobbyists are just too good at paralyzing things. The last time an Amendment was passed that had significant political opposition was the Poll Tax in 1962.**************Holdfast is right. These are the forces of Transnational Progressivism at work...and they in turn are the descendents of Communism who regrouped from that failure. and since the People rejected Communism..are trying to use mechanisms of Law and unaccountable NGOs staffed by Elites that bypass democratic institutions.

As dearly as I love international humanitarian law, I don't see how it applies to the celebration of Mother's Day or even the right of women to have abortions. Any such (UN resolutions, etc.) are the aspirational goals of other people.

There are practical problems caused by the international application of US domestic law too by the way: many countries will not extradite murderers to the US because we have the death penalty, which they consider barbaric.

"And ...what? Are we supposed to get on our knees and light a votive candle to the Goddess of the Religious Right as she talks?"

I like how you spent the lead-up to the 2008 election on your knees giving Barack Obama a hummer and suddenly you're saying "I told you so" regarding what the rest of us already knew regarding Obama's love of "transnationalism". Were you blinded by all the Hope and Change? Did you think his Muslim roots made him the most likely to become a Jew-hater of the candidates? Or are you just a loud-mouth idiot who is like a stopped clock that somehow manages to be right only once a day? I suspect the latter.

fls - That can be dealt with - the Canada-US extradition treaty provides that the extraditing country can make extradition contingent upon the prosecuting authority agreeing to forgo the death penalty. Fun fact, when that treaty was signed, Canada had the death penalty (admittedly unused for a decade) and the US did not.

"many countries will not extradite murderers to the US because we have the death penalty, which they consider barbaric."

lol. I think I'll err on the side of not trusting the judgment of nations who think that the death penalty is barbaric but that the misery of Marxism is just fine. Remember, one death in the barbaric electric chair is a tragedy for Europeans, but the deaths of millions upon millions either directly or indirectly oppressed and murdered by collectivism is a statistic.

I fear the next decade is either going to see our complete subjugation and serfdom or a very violent revolution. Judging by the complicity, stupidity and laziness of Americans these days, I'm guessing the former. Neither is good, neither will end well for freedom. How did we get to this point? How did we miss the looming checkmate for the forces of servitude and misery?

There are practical problems caused by the international application of US domestic law too by the way: many countries will not extradite murderers to the US because we have the death penalty, which they consider barbaric.

How close-minded and judgmental of them. Don't they know that they're supposed to celebrate diversity?

many countries will not extradite murderers to the US because we have the death penalty, which they consider barbaric.And of course many countries, certainly those in Europe, have more restrictive abortion laws than the US has.

I'm doubtful that Dr. Koh and his allies will be citing those limits when it comes to our abortion laws.

To show regard for "the opinions of mankind," [Koh] asserted in a 2002 law review article, the death penalty "should, in time, be declared unconstitutional." Why "in time"? All the states he's likely to want to pay attention to have abandoned the death penalty already (though, to be fair, many of their populations, to judge by poll results, have not). What are we waiting for? What is time likely to change -- apart from the political climate here, which is already undermining the penalty in the normal (i.e., democratic) way?

I'm curious how far he's willing actually to tweak the First Amendment. Are we talking about conforming ourselves to British libel law? Saudi law on blasphemy and apostasy? German law on, e.g., Nazi literature and Scientology? Or wholesale reduction of all material available online to the least common denominator of what all sovereign governments think fit to be published?

It seems to me that if we sign on to any treaty whose terms directly impinge on the Bill of Rights, someone's going to have to decide which is controlling, and it's not obvious who will win. IMO, an excellent reason not to sign 'em.

I could be wrong, but I'm not.You're not. As a bunch of people have pointed out upthread, given the international smorgasbord at hand, there's no reason for anyone not to cite any nation's law that doesn't stand farther along in the particular direction s/he wants the US to go. You can always find someone closer to what you want than we are; and you can always come up with a rationale for dismissing the contrary cases if you're diligent enough. It might not pass close examination; but then it doesn't have to.

You can always find someone closer to what you want than we are; and you can always come up with a rationale for dismissing the contrary cases if you're diligent enoughSure, there must be, what, 100,000 court rulings across the globe handed down each year?

200,000? 50,000? Certainly in the tens of thousands.

There is simply no way a judge has the time or capability - even with 100 law clerks - to read much less comprehend all of those rulings.

Koh and his allies are talking about selecting those cases from those courts and those rulings that buttress his prejudices.

"I fear the next decade is either going to see our complete subjugation and serfdom or a very violent revolution. Judging by the complicity, stupidity and laziness of Americans these days, I'm guessing the former. Neither is good, neither will end well for freedom. How did we get to this point? How did we miss the looming checkmate for the forces of servitude and misery?"

I've been saying this for a long time. To an almost universally dismissive if not derisive audience. However all the people arming themselves as well as the core of the military being pro-American leads me to suspect that violent conflict is the more likely scenario.

I sure hope so.

Otherwise the whole species will end up in servitude (America is the last bulwark against statism), and when that happens the attendant downward spiral in productivity will leave too few resources to support the world's population. It doesn't require much imagination to see what happens next.....

WASHINGTON—Although three years have passed since both men joined the court, Chief Justice John Roberts, 54, and Associate Justice Samuel Alito, 59, said they still feel foolish whenever more senior justices refer to cases decided "way before" they joined the court. "One time—one time—I asked what World-Wide Volkswagen v. Woodson was, and Stevens goes off on this tear about me still being in diapers when Earl Warren was inventing Miranda rights," Alito said of the 88-year-old justice appointed by President Gerald Ford. "God, sorry I didn't get my law degree before World War I, geez." According to court clerks, the two younger justices occasionally get so frustrated with the constant teasing that they take a bus to go spend time with their friends in the 9th Circuit.

"How did we miss the looming checkmate for the forces of servitude and misery?"

I think a lot of people are finally getting it. I was surprised by how many people in the tea party rallies had placards that meant something important. It's not about taxes; it's about not becoming government serfs.

But, fls, the point is that cattle emit methane as well as CO2; that methane is (IIRC) 37x as potent a greenhouse gas as CO2; and that every time a cow eats grass the grass stops absorbing CO2 and the cow keeps emitting CO2 and methane. Cattle are obviously a net greenhouse gas source. And I have, again, seen this seriously argued as (among other things) proving that we're all doomed if the planet doesn't go vegan.

Think of it: All the emitting food animals extinct or nearly so; all the plants they used to eat still there (or replaced by other vegetation that would also consume CO2). It's claimed that cattle contribute more to global warming than cars do.

"I think a lot of people are finally getting it. I was surprised by how many people in the tea party rallies had placards that meant something important. It's not about taxes; it's about not becoming government serfs."

And what did they get out of it? Getting sneered at and having sexual jokes made at their expense by the media and the "progressives". Nothing will change. There is no opposition party. Nothing stopped the Republicans except the Democrats and now certainly noting will stop the Democrats.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

I used to think that Jefferson was a little over the top. My thinking has changed.

Oh Palladian,You are just so passe and old fashioned. This is a brave new world. All that 18th Century stuff is nonsense now. Look at the advances in Cuba, Venezuela, Nicaragua, Somalia, Sudan, Iran, and other countries. They do not have some old, flawed peice of paper. They are getting along just fine.

Time to join the modern world boyo. Time to get down with the proletariat or Reishstag. Freedom is dead. It is old fashioned. We are living in a Brave New World. A Messiah has arrived to save us from ourselves and our freedoms.

BTW, don't let the moron from Arizona who runs DHS find you. If you own a lap top you may be considered a terrorist.

"How did we get to this point? How did we miss the looming checkmate for the forces of servitude and misery?"Cough, cough (choking) Excuse me?

Dude, I have a whole blog about what's been happening - including outlining the whole metaphysical framework that got us here (which you guys are more than willing to pooh-pooh as you continue to idiotically wonder how, why, and where your country is disappearing) - while, excuse me again, you prefer to hang out with the artist who voted for this. Bravo!

Actually: whatever.

"I fear the next decade is either going to see our complete subjugation and serfdom or a very violent revolution. Judging by the complicity, stupidity and laziness of Americans these days, I'm guessing the former. Neither is good, neither will end well for freedom."And I remember something about freedom and liberty needing the blood of tyrants to refresh itself every now and then. Don't remember where I read it. Probably written by some fool or another. Quite likely a "follower" of some silly belief system, since the contemporary consensus seems to be that that's where all the brains are - in "following", I mean.

For such, apparently, highly-educated people (you can knowledgeably discuss international law and everything) y'all's embarrassing when it comes to common sense. I already know your pride will now cause you to argue that point - or ignore it: anything but accept that I know what I'm talking about as you grasp at straws and pull your hair because you don't - making my point even stronger. Meanwhile, the situation gets worse. Go on, I'm getting used to it.

So the carbon we're releasing by burning fossilized fuels was all once in the atmosphere, as was the carbon still in the ground--and there were lots of plants to absorb it then--not just deserts and oceans and apocalypic weather. They didn't think their theory through.

Carbon is one of the most important building blocks of life. Every living thing is composed of carbon and/or exudes carbon dioxide. The only way to end global warming is to kill every living thing. That is the agenda.

I have said this before; if you want to reduce your own carbon footprint, just kill yourself and leave me alone.

"They didn't think their theory through."Of course the didn't, they're NewAgers, and they're pushing the rest of you around with solipsism. Unfortunately, you guys are such wimps you can't be men (or women) and just stop them - that's considered bad form for use against anyone but those on the Right - so they get to run the show while you're consulting Miss Manners.

Look at one NewAge obsession: Homeopathy. It's nothing but water. 100% of nothing. But they're getting away with selling it in health food stores, getting grants to "study" it, and using it in hospitals. And everytime someone says "It's just water." NewAgers say we need to study it more before we stop using it - which seems reasonable to wimps (studying nothing, mind you) and the NewAgers are allowed to dig deeper into the infrastructure of society, burrowing in until it'll take Paladian's "revolution" to get them out - which the wimps will oppose because - gasp! - it'll be a (much needed) witch hunt. A witch hunt they'll blame on the hunters - not on the assholes who were taking advantage of the foolish wimp's good intentions.

The same thing is happening - aggressively - in various parts of society (science, medicine, spirituality, etc.) including politics. Obama's the classic con: You (like our "rebellious" at 58, Ann, hopefully) thinking it was a stolen stereo, bought a box of rocks instead. And, once you understand that - once the con sinks in - you should get mad at being conned. But, since you were a part of the con (you did think you were being slick, buying a stolen stereo AKA pulling a fast one on the Washington establishment of Clinton and the Republicans and that evil George W. Bush) the con man might get away because you don't want to reveal how much you were a contributer to crime. (You were being cynical, not patriotic.) That's how cons work.

Best to stop calling Obama a socialist and start calling him a "statist" and "trans-statist".

Within a few years the transnationalists will have no choice but to assent to the claims of the Islamic states that human rights discourse is "unjustly" colored by the "Western" notion of human rights.

So, they want to make us more like Europe. Wanna bet when it comes to nuclear Power, lower corporate taxation, lower national debt(!), and actual restrictions on abortion, they'll all insist that America go her own way?

The "interconnectedness" of the US and the rest of the world are better reflected in the attitudes of US citizens, expressed through the laws enacted by their representatives, than in the intuitions of judges. They are (supposedly) legal experts, not sociologists.

There's an easy way to deal with Koh. The current way requires someone to go back to school and spend the next eight years becoming a legal scholar, and we don't have that much time.

So, if anyone wants to prevent the nomination, highlight that Harold Koh enabled illegal activity and either couldn't see a problem with what he was supporting or was trying to mislead people.

Back at Yale, he supported NewHaven handing out IDs to those here illegally. For those not that familiar with these issues, handing out such IDs makes it easier for those who came here illegally to stay here (after breaking our laws). While living here illegally, they'll be involved in other law breaking: some will engage in ID theft, some will be hired illegally, and so on. And, there in the background, banks want to accept their deposits (of money that was earned illegally) and send some of that illegally earned money out of the U.S. And, those banks then take a portion of their profits and donate it to politicians who look the other way when it comes time to enforce our laws. That's not bags-of-cash corruption, but it is corruption nonetheless.

The bottom line is that by supporting the ID, Koh was supporting a sleazy web of illegal activity and corruption.

If a citizen journalist who's familiar with these issues could get video of them walking him through all the things he was enabling and then could upload that to Youtube, that could be very helpful. Don't count on the MSM to do anything like that; you have to do it.